PUBLIC LAW L4 - Parliamentary Sovereignty - IMPACT OF DEVOLUTION AND HRA

Question 1

What are devolution and the HRA examples of? (1)

Answer 1

Imposed limitations by modern parliaments.

Question 2

Could UK parliament repeal the Scotland Act? (2)

Answer 2

In legal terms, there would be nothing to stop UK parliament from repealing the act entirely and ending devolution.
In political terms, the range of devolved powers has been expanded and nationalist sentiment has been increased so it is difficult to see how the policy of devolution could be reversed without leading to a constitutional crisis.

Question 3

How does the HRA show the UK’s dualist system? (1)

Answer 3

The HRA incorporated the European Convention on Human Rights into UK domestic law.

Question 4

What does section 2 of HRA require? (1)

Answer 4

any court or tribunal determining a question which has arisen in connection with a convention right must take into account the jurisprudence of the European Court of Human Rights so far as, in the opinion of the court or tribunal, it is relevant to the proceedings in which that question has arisen

Question 5

What is the mirror principle and who created it? (2)

Answer 5

Lord Bingham – the duty of national courts is to keep pace with the Strasbourg jurisprudence as it evolves over time: no more, but certainly no less.

Question 6

What have the courts been bolder in arguing in recent years? (3)

Answer 6

For a development of the law that preserves the autonomy of English law, that there should be dialogue between UK courts and the ECHR so that they can learn from each other in how is best to maintain and promote ECHR rights.

Question 7

What does section 3 of the HRA state? (1)

Answer 7

So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with convention rights.

Question 8

Whose eyes has section 3 of HRA been controversial in? (1)

Answer 8

In the eyes of those who have concerns over the maintenance of orthodox sovereignty.

Question 9

What is the issue relating to section 3? (1)

Answer 9

Whether in practice this interpretive power has given the judiciary the ability to over-ride the apparent intention of Parliament when it passed the original legislation which is being interpreted.

Question 10

Does the HRA have a higher status of ordinary statue in effect? (1)

Answer 10

Yes.

Question 11

What does Section 4(2) of the HRA state? (1)

Answer 11

If a court is satisfied that a provision is incompatible with a convention right, it may make a declaration of incompatibility.

Question 12

What is the effect of a declaration of incompatibility? (4)

Answer 12

The effect of a declaration of incompatibility is political rather than legal in that it is not the same as an invalidation of an Act of Parliament. When a declaration is made under s.4 this is seen as a significant intervention and, in most instances, the politicians do take steps to remedy the incompatibility in the law – though they are not compelled to.

Question 13

What effectively are section 3 and 4 of the HRA? (2)

Answer 13

They are effectively alternate powers that the courts can utilise if incompatible legislation appears to have allowed or brought about the violation of an ECHR right.

Question 14

What have some academics categorised section 4 of the HRA as? (1)

Answer 14

A mechanism which achieves an indirect form of constitutional review of legislation.

Question 15

What can the HRA overall be seen as representing? (2)

Answer 15

An accommodation between stronger rights protection and the need not to undermine the traditional doctrine of parliamentary sovereignty.